Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he purchased one soft Drink bottle Nimbooz Masala Soda, batch No. 946BO-4E17 for a sum of Rs.15/- alongwith one cup of tea from Opposite Party No.5 on 08.06.2017 vide bill No.8 for consumption. The complainant is pure vegetarian and he believes in Radha Swami Sect, however when the complainant was going to consume the said drink, he was totally shocked and surprised to see some unwanted, unhygienic and solid substance in the said drink bottle which apparently looks like a piece of non-veg and due to this fact, the religions feelings of the complainant were seriously hurt to a great extent since he is a pure vegetarian. The complainant immediately complained the matter to Party No.5 on which, Party No.5 told that he is only selling the product as it has been received from Opposite Parties No.1 to 4 in intact condition. Thereafter, the complainant made so many complaints to the Opposite Parties regarding the substandard and unhygienic quality of the product, but they did not pay any heed to the request of the complainant and refused to admit the rightful claim of the complainant and as such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to refund the amount of the soft drink and also to pay a sum of Rs.5 lakh as compensation/ damages for the mental as well as physical harassment, torture, given to the complainant due to irresponsible attitude of the Opposite Parties and also to pay Rs.11,000/- as litigation expenses or any other relief to which this District Consumer Commission may deem fit be also granted.
3. Opposite Party No.1 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that Opposite Party No.1 does not manufacture any soft drink in the northern region of the country and does not conduct any manufacturing business of soft drinks in northern region of the country including Punjab and Haryana, so the answering Opposite Party has been wrongly impleaded as a party. The present complaint deserves to be dismissed on the ground that when the bottle in question was manufactured, what are the exact details of the bottle in question if any he had. It is further submitted that the complainant has not mentioned any batch number of the product in question. Rather the same was procured from the open gray market to file this present complaint and to black mail the answering Opposite Party. It is further submitted that there is no explanation given in the complaint that how and in what condition the bottle in question was kept by the complainant till date. The product inside the bottle in question is of perishable nature and has its own shelf life of six months from the date of its manufacture. It is again submitted that the alleged bottle was not the product of the answering Opposite Party. The answering Opposite Party neither marketing nor manufacture, distribute or sell the bottle within the jurisdiction of this District Consumer Commission. On merits, Opposite Party No.1 took up the same and similar pleas as taken up by them in the preliminary objections. Hence, the complaint may be dismissed with costs.
4. Opposite Party No.2 appeared through their counsel and filed the written reply contesting the complaint and submitted that the company has been manufacturing Pepsi Branded products, one of the most reputed brand names in the competitive market and it has achieved brand recognition goodwill in many countries. It has strictly taken all due care towards its products to make the product best. It manufactures products by using modern sophisticated automatic machine at its various plants located in several states of the country and involves strict quality check at various stages of manufacturing and it has no manual intervention in filling operation. Moreover, the complainant has not purchased the alleged bottle of drink from the answering Opposite Party, nor has paid any consideration to the answering Opposite Party, so he is not a consumer under the Act. Further the complainant has alleged that he saw unwanted unhygienic solid substance in the alleged bottle, but without getting the seal and contents of the bottle tested, it is impossible to opine as to whether the alleged foreign particles is a result of any negligence during the manufacturing process or the same has been inserted subsequently after tempering the seal of the bottle. In order to establish that the alleged foreign particles in the alleged bottle is a result of any slackness in the manufacturing process and the same has not been put therein after tempering with the seal of the bottle, it was necessary for the complainant to produce the bottle for testing prior to expiry of best before date. On merits, the Opposite Party No.2 took up almost the same and similar pleas as taken up by them in preliminary objections and it was prayed for the dismissal of the complaint.
5. Opposite Party No.5 appeared through counsel and filed separate written reply contesting the same. It is admitted that the bottle of soft drink in question has been purchased by the complainant from answering Opposite Party, but said soft drink bottle was received by them in packed condition from the manufacturing company Opposite Party No.1 through Opposite Party No.3 and the same was delivered to the complainant in intact condition as it was received from the manufacturing company and hence there is no fault or liability on the part of the Opposite Party No.5 and hence there no deficiency in service on the part of Opposite Party No.5.
6. None has come present on behalf of Opposite Parties No.3 and 4 and hence, Opposite Parties No.3 and 4 were proceeded against exparte.
7. In order to prove his case, alongwith the complaint at the initial stage, the complainant has placed on record his affidavit as Mark “A” alongwith copy of legal notice Mark ‘B”, copies of postal receipts Mark ‘C” and copy of bill Mark ‘D” and also tendered into evidence the affidavit of Balvir Ram Ex.CB alongwith photographs of the bottle in question in which some foreign particle is seen with naked eyes.
8. On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 also tendered into evidence the affidavit Ex.RA and closed the evidence.
9. We have heard the ld.counsel for the parties, perused the written arguments and also gone through the documents placed on record.
10. During the course of arguments, ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that he purchased one soft Drink bottle Nimbooz Masala Soda, batch No. 946BO-4E17 for a sum of Rs.15/- alongwith one cup of tea from Opposite Party No.5 on 08.06.2017 vide bill No.8 for consumption. The complainant is a pure vegetarian and he believes in Radha Swami Sect, however when the complainant was going to consume the said drink, he was totally shocked and surprised to see some unwanted, unhygienic and solid substance in the said drink bottle which apparently looks like a piece of non-veg and due to this fact, the religions feelings of the complainant were seriously hurt to a great extent since he is a pure vegetarian. The complainant immediately complained the matter to Party No.5 on which, Party No.5 told that he is only selling the product as it has been received from Opposite Parties No.1 to 4 in intact condition. Thereafter, the complainant made so many complaints to the Opposite Parties regarding the substandard and unhygienic quality of the product, but they did not pay any heed to the request of the complainant. On the other hand, Opposite Parties No.1, 2 and 5 has denied the aforesaid contention of the complainant and contended that the complainant has failed to prove any deficiency or negligence on the part of the Opposite Parties. The main ground of Opposite Party No.1 is that the product inside the bottle in question is of perishable nature and has its own shelf life of six months from the date of its manufacture. It is again submitted that the alleged bottle was not the product of the answering Opposite Party. The answering Opposite Party neither marketing nor manufacture, distribute or sell the bottle within the jurisdiction of this District Consumer Commission. On the other hand, Opposite Party No.5 in its reply has specifically mentioned that he has sold the said product to the complainant vide bill in question, however Opposite Party No.5 has failed to produce any iota of evidence, vide which bill or consignment and under what batch number he has purchased the product from Opposite Parties No.1 and 2, because the main contention of the Opposite Parties No.1 and 2 is that Opposite Party No.1 does not manufacture any soft drink in the northern region of the country and does not conduct any manufacturing business of soft drinks in northern region of the country including Punjab and Haryana. Opposite Party No.1 further contended that when the bottle in question was manufactured, what are the exact details of the bottle in question if any he had. It is further submitted that the complainant has not mentioned any batch number of the product in question. Rather the same was procured from the open gray market to file this present complaint and to black mail the answering Opposite Party. Moreover, there is no explanation given in the complaint that how and in what condition the bottle in question was kept by the complainant till date. The product inside the bottle in question is of perishable nature and has its own shelf life of six months from the date of its manufacture. It is again submitted that the alleged bottle was not the product of the answering Opposite Party. The answering Opposite Party neither marketing nor manufacture, distribute or sell the bottle within the jurisdiction of this District Consumer Commission.
11. Undisputedly, there is some foreign particles in the bottle in question which was purchased by the complainant from Opposite Party No.5-Rakesh Confectionery vide consideration and it is also not denied by Opposite Party No.5-Rakesh Confectionery that there is no such foreign particles in the bottle in question, hence we are of the view that Opposite Party No.5-Rakesh Confectionery must be penalized for selling such type of the product to the consumer. In his complaint, the complainant has prayed for relief before this District Consumer Commission to direct the Opposite Parties to pay compensation of Rs.5 lakh for harassment, mental agony, but we are of the view that the claim for compensation to the tune of Rs.5 lakh appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would be fully met if the complainant is awarded lump-sum compensation to the tune of Rs.3,000/- and we award the same accordingly against Opposite Party No.5-Rakesh Confectionery who has sold the said product to the complainant because the Opposite Opposite Party No.5-Rakesh Confectionery has failed to prove that the said product was purchased by him from Opposite Parties No.1 and 2.
12. In view of the aforesaid facts and circumstances of the case, we partly allow the complaint of the complainant against Opposite Party No.5-Rakesh Confectionery and Opposite Party No.5-Rakesh Confectionery is directed to pay Rs.3,000/- (Rupees three thousands only) as lumpsum compensation to the complainant. However, Opposite Party No.5-Rakesh Confectionery is at liberty to claim this amount from the original manufacturer of this product. Compliance of this order be made by Opposite Party No.5 within 60 days from the date of receipt of the copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. All applications pending before this District Consumer Disputes Redressal Commission, if any, stand disposed off accordingly. Copies of the order be furnished to the parties free of cost by District Consumer Disputes Redressal Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
13. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Disputes Redressal Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Disputes Redressal Commission, Moga has decided the present complaint today at Camp Court, Ludhiana, as early as possible.
Announced in Open Commission at Camp Court, Ludhiana.
